Gov. Shumlin says state will fight Entergy's Vermont Yankee lawsuit

Apr. 18, 2011

Right, Vermont Governor Peter Shumlin talks about Entery's track record of sworn statements that the governor claims weren't truthful during a press conference with Attorney General William Sorrel answering a Federal lawsuit by the owners of Vermont Yankee nuclear power plant seeking an injunction against the state which would allow the plant to operate past it's 2012 license. / RYAN MERCER, Free Press

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MONTPELIER — Vermont Yankee owner Entergy Corp. turned to federal court Monday to try to keep Vermont from shutting down the Vernon nuclear power plant, setting the stage for a final fight with the state regarding the plant’s future.

In a lawsuit filed in U.S. District Court in Vermont, the company argued the state has no right to stop the plant from operating.

“It’s been made clear that the governor and many in the General Assembly have concluded that the plant should be shut down. This has left us with no other choice but to seek relief in the court system,” Richard Smith, president of Entergy Wholesale Commodities, said in a Monday conference call.

Gov. Peter Shumlin and Attorney General William Sorrell said the state will fight the lawsuit. “We have been ready for this,” Shumlin said.

Sorrell said three attorneys from his office and Public Service Department lawyers have been preparing for a lawsuit for months.

Entergy’s lawsuit asks for a temporary injunction against any Vermont efforts “to shut down or make preparations to shut down” Vermont Yankee while the case is pending. The lawsuit also seeks a ruling permanently prohibiting the state from shuttering the plant. The company is demanding, too, that Vermont pay Entergy’s attorney fees and costs.

The U.S. Nuclear Regulatory Commission last month granted the 39-year-old Vermont Yankee plant a 20-year extension of its operating license. The plant has failed to win state permission to keep operating, however, amid concerns involving tritium leaks and misinformation the company supplied to the state related to the leaks.

Previous agreement

In a 2002 agreement with the state when Entergy bought the plant, the company agreed to follow state review for renewed operation of the plant. In its lawsuit, however, Entergy claims a 2006 law that made Vermont the only state where the Legislature has a say in the future of a nuclear power plant changed the ground rules. The law required the Legislature’s approval before the Public Service Board could consider granting the plant a certificate of public good.

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“The 2006 state law took the decision about Vermont Yankee’s future away from the Public Service Board, a quasi-judicial expert decision-maker, independent of legislative control,” Smith said. “It instead placed Vermont Yankee’s fate in the hands of political decision-makers.”

The state Senate in 2010, under then-President Pro Tempore Shumlin, voted 26-4 against allowing the Public Service Board to rule.

“This is not what we signed up for in 2002,” Smith said.

“Vermont law is clear,” Sorrell countered. “They signed agreements to abide by Vermont law.”

The 2006 law passed the Legislature easily and was signed by Republican Gov. Jim Douglas without complaint from Entergy. In 2009, Vermont Yankee spokesman Rob Williams told the Burlington Free Press, “We did not oppose the Legislature’s involvement because we felt then, as we do now, that open discussion on the state’s long-term energy supply is in everyone’s best interest.”

Michael Dworkin, who was state Public Service Board chairman in 2002 when Entergy bought the plant, said Entergy is reneging on the 2002 agreement.

“When Entergy agreed to submit to the board’s jurisdiction, it was agreeing to a board that was a creation of the Legislature,” he said. Overall, Dworkin called Entergy’s lawsuit “very, very weak.”

Federal or state control?

Entergy argues in its lawsuit that a state has no authority regarding the licensing of nuclear power plants, highlighting a 1983 U.S. Supreme Court decision that determined only the federal government has jurisdiction over radiological safety.

Robert Hemley, a lawyer representing Entergy in this court filing, is a First Amendment lawyer who represents several newspapers in Vermont including the Burlington Free Press.

“Vermont has asserted that it can shut down a federally licensed and operating nuclear power plant, and that it can regulate the plant based upon Vermont’s safety concerns,” Entergy stated in a news release Monday. The lawsuit cites instances in which Shumlin has referred to tritium leaks at the plant and other safety issues as reasons for shutting down the plant.

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Dworkin said Entergy’s argument failed to note the decision allows states jurisdiction over energy planning and other aspects of a plant.

The U.S. Nuclear Regulatory Commission has indicated states have a role in decision-making regarding nuclear power plants. NRC spokesman Neil Sheehan would not comment Monday other than providing this statement: “Entergy’s legal challenge is a matter between the company and the state. The NRC has already granted a license extension after a comprehensive and thorough review that took more than five years.”

Sorrell said he thinks other states will be watching closely for the outcome of Entergy’s lawsuit and its impact on a state’s role. “This is a case of potentially national significance,” he said.

Sorrell, Shumlin and the three members of the Public Service Board are named as defendants in Entergy’s lawsuit.

The lawsuit has been assigned to U.S. District Judge J. Garvan Murtha, who presides in federal court in Brattleboro. The 34-page claim asks Murtha to rule on the issues, rather than having a jury decide. Among the other claims Entergy raises is that Vermont should not be allowed to require state legislative or regulatory approval for Vermont Yankee to deliver power to the grid or store spent fuel at the site after March 21, 2012.

The lawsuit also says Vermont’s regulation of the plant also represents an improper interference in interstate commerce by requiring Vermont Yankee “to provide below-market wholesale electricity rates to Vermont customers.”

Reaction

The lawsuit was hailed by supporters of Vermont Yankee and denounced by opponents.

“It has been a failure of leadership and responsibility on the part of the (Shumlin) administration and legislative leaders that this issue has come to this point,” said William Driscoll, vice president of Associated Industries of Vermont, which represents manufacturers with an interest in the cost of electricity and contends Vermont Yankee’s offer to sell Vermonters power for 4.9 cents per kilowatt hour should not be passed up.

“By filing this lawsuit, Entergy is reneging on a promise made to the people of Vermont,” said James Moore, energy program director with Vermont Public Interest Research Group, which wants the plant shut down.

Vermont’s three-member congressional delegation spoke in support of Shumlin’s position.

“They’re obviously going to mount a propaganda campaign and mount their lawsuit. They’re will say what they want,” Sen. Bernie Sanders, I-Vt., said Monday. “But I think the state Legislature did the right thing. It’s what the people of Vermont wanted them to do, and I think that it’s certainly lawful.”